Date: 20040311
Docket: IMM-1524-04
Citation: 2004 FC 374
Vancouver, British Columbia, Thursday, the 11th day of March, 2004
Present: THE HONOURABLE MR. JUSTICE O'KEEFE
BETWEEN:
MARIA GUADALUPE ROJAS CAMACHO
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
[1] The Applicant is a citizen of Mexico who arrived in Canada on April 1, 2001.
[2] The Applicant made a Convention refugee application on April 26, 2001, which was dismissed on November 30, 2001.
[3] The Applicant's Pre-Removal Risk Assessment (PRRA) application was denied by a decision dated January 29, 2004.
[4] The Applicant stated that in the year 2000 two of her friends were murdered. The Applicant's sister was kidnapped for one week, beaten and raped. In early February, the Applicant stated that she was threatened by a masked man who shook and punched her. As well, the Applicant stated that on February 24, 2001, she was grabbed by a masked man who pointed a gun at her head. The man said he belonged to the gang "Los Cholos" and that he wanted her to work as a prostitute. The man released her. The Applicant did not report any of these incidents to the police.
[5] The Applicant is scheduled to be removed from Canada on March 12, 2004.
Issue Should an order issue staying the removal of the Applicant?
Analysis and Decision
[6] It is now accepted that an expulsions officer has some discretion and may, in certain circumstances, stay the removal of the applicant (see Wang v. Canada (Minister of Citizenship and Immigration) [2001] F.C.J. No. 295 (F.C.T.D.)).
[7] In order to obtain a stay, the Applicant must satisfy the requirements set out in Toth v. Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302 (F.C.A.), at page 305:
This Court, as well as other appellate courts have adopted the test for an interim injunction enunciated by the House of Lords in American Cyanamid Co. v. Ethicon Ltd., [1975] A.C. 396 [Footnote 3 appended to judgment]. As stated by Kerans J.A. in the Black case supra:
The tri-partite test of Cyanamid requires, for the granting of such an order, that the applicant demonstrate, firstly, that he has raised a serious issue to be tried; secondly, that he would suffer irreparable harm if no order was granted; and thirdly that the balance of convenience considering the total situation of both parties favors the order.
The Applicant must meet all three branches of the tri-partite test.
Serious Issue
[8] The Applicant is questioning the decision of the PRRA officer; however, no serious issue was raised by her motion.
Irreparable Harm
[9] The Applicant states that her removal to Mexico would cause a disruption in her English language training and that she has an outstanding Humanitarian and Compassionate application. The Applicant states that she has been in Canada since April 2001 and wishes to stay. I am of the opinion, based on these facts, that the Applicant has not satisfied me that she would suffer irreparable harm if an order was not issued to stay her removal to Mexico.
[10] As the Applicant must meet all three branches of the tri-partite test, I need not discuss the balance of convenience issue.
[11] The Applicant's motion for a stay of her removal to Mexico is dismissed.
ORDER
The Applicant's motion for a stay of her removal to Mexico is dismissed.
(Sgd.) "John A. O'Keefe"
Judge
| I HEREBY CERTIFY that the above document |
| is a true copy of the original filed of record in the Registry of the Federal Court on the _______ day of ___________ A.D. 20 ____
Dated this _______ day of ____________ 20 ____
Lorne Fidgette, Registry Officer |
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1524-04
STYLE OF CAUSE: Maria Guadalupe Rojas Camacho v.
The Minister of Citizenship and Immigration
PLACE OF HEARING: Vancouver, B.C.
DATE OF HEARING: March 11, 2004
REASONS FOR ORDER AND ORDER: O'Keefe J.
DATED: March 11, 2004
APPEARANCES:
Ms. Maria Guadalupe Rojas Camacho On her own behalf
Mr. Keith Reimer For Respondent
SOLICITORS OF RECORD:
Morris Rosenberg For Respondent
Deputy Attorney General of Canada